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Decision No. 15,967

Appeal of a STUDENT WITH A DISABILITY, by her parents, from action of the Board of Education of the Sherburne-Earlville Central School District and Gayle Hellert, Superintendent, regarding an allegation of child abuse.

Decision No. 15,967

(August 14, 2009)

Legal Services of Central New York, Inc., attorneys for petitioner, Deborah Bice, Esq., of counsel

The Law Firm of Frank W. Miller, Esq. attorneys for respondents, Frank W. Miller, Esq., of counsel

HUXLEY, Interim Commissioner.--Petitioners appeal the actions of the Board of Education of the Sherburne-Earlville Central School District (“respondent board” or “board”) and Gayle Hellert, Superintendent (“superintendent”), concerning respondents’ handling of an allegation of child abuse in an educational setting.  The appeal must be dismissed.

During the 2006-2007 school year, petitioners’ daughter was nine years old and classified by respondents’ Committee on Special Education (“CSE”) as a student with a disability.  Pursuant to her individualized education program (“IEP”), petitioners’ daughter was placed in the Tradewinds School operated by United Cerebral Palsy of Utica, New York (“UCP”) during the summer program in 2006.  The UCP placement continued into the 2006-2007 school year until the student was removed in late January 2007. 

In an email dated January 3, 2007 to the superintendent, petitioners expressed concern about incidents at the Tradewinds School in which the student sustained bruises and questioned the appropriateness of her placement.  The superintendent responded that same day and scheduled a CSE meeting.  Petitioners and the superintendent attended a January 16, 2007 meeting of the CSE that resulted in a recommendation to pursue a new placement for the student. 

On January 23, 2007, petitioners’ daughter was placed in one-on-one isolation with a staff member after she reportedly had inappropriate and violent sexual contact with one student and attempted to grab another.  UCP notified petitioners of the incident on January 23, 2007 at 5:47 pm.  The January 23, 2007 incident was reported as an allegation of sexual abuse to the State Office of Mental Retardation and Developmental Disabilities (“OMRDD”) and its investigation resulted in a finding of inappropriate sexual conduct by petitioners’ daughter. 

On or about February 5, 2007, the district notified UCP that the student would not be returning to the Tradewinds School.  By letter dated March 8, 2007, UCP summarized the injury/incident reports regarding the student while attending the Tradewinds School.  The CSE met again on March 14, 2007.  Following a period of home schooling, the student ended the 2006-2007 school year in a residential placement pursuant to an amended IEP.

By letter dated August 13, 2007, petitioners requested a copy of abuse allegations filed on behalf of their daughter by respondents against UCP.  Respondents responded on August 17, 2007 that no abuse allegations had been filed.  Petitioners commenced this appeal on September 13, 2007.

Petitioners contend that actions taken by the Tradewinds School of isolating their daughter on January 23, 2007 and not contacting them immediately constitute acts of abuse that should have been reported to law enforcement authorities by respondents.  Petitioners contend that a reasonable suspicion existed to believe that an act of child abuse in an educational setting occurred based on the January 23, 2007 incident, the bruising the student experienced while at UCP in January 2007, and the fact that UCP conducted its own investigation.  Petitioners argue that respondents failed to promptly provide them with a written summary of parental rights, responsibilities and procedures as required by Education Law §1128(2).  Petitioners allege that their attempts to report allegations of child abuse to police and the NYS Child Abuse Hotline were unsuccessful.   

Petitioners further contend that they reported to respondents by email and telephone in January 2007 that their daughter suffered physical abuse from inappropriate restraint and supervision at Tradewinds School and presented photographs showing bruises at the January 16, 2007 CSE meeting.  Petitioners seek an order requiring respondents to forward the allegations of abuse to appropriate law enforcement authorities and directing respondents to amend their policies and practices to conform to Commissioner’s regulations for reporting allegations of child abuse in a school setting.  Petitioners also request that I impose a fine as a civil penalty on respondents pursuant to Education Law §1129(2).

Respondents contend that the appeal should be dismissed as untimely and because the Commissioner lacks jurisdiction to enforce Social Services Law §420.  As to the merits, respondents deny that they were required to file a child abuse report regarding petitioners’ daughter.  Respondents argue that they could not reasonably and in good faith make a report of child abuse against UCP based on information before them in January 2007.  Respondents maintain further that neither petitioners nor respondents witnessed any abuse at UCP, that no particular employee or volunteer was alleged to have intentionally or recklessly caused injury to the student, and the superintendent had no reasonable suspicion that child abuse had occurred.  

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of O’Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016).  As explained more fully below, I am constrained to dismiss the appeal as untimely.

Education Law §1128 sets forth the responsibilities of a superintendent when a parent makes an allegation of child abuse in an educational setting.  Education Law §1128(2) requires that where there is a reasonable suspicion to believe that an act of child abuse has occurred, the superintendent shall promptly provide the parent with a written statement prepared pursuant to §100.2(hh) of the Commissioner’s regulations setting forth parental rights, responsibilities and procedures and promptly forward the report to the appropriate law enforcement authorities.  The term “promptly” reflects the legislative intent that expedited action be taken when allegations of child abuse are made to school officials.  While Education Law §1128(2) does not contain a specific timeline for the required actions by the superintendent, it is clear from the context that they must occur within the hours or days and not months after the incidents.

In this case, the allegations of abuse were made in January 2007, at the same time the student was removed from the setting where the alleged abuse occurred.  The superintendent admits being present at the meeting in January 2007 in which petitioners asserted their allegations of abuse and that these allegations were presented to representatives of UCP.  Petitioners, however, did not commence this appeal until September 13, 2007, nearly eight months later.  Petitioners should have commenced this appeal within 30 days of the January 2007 meeting or within a reasonable time thereafter when they did not receive any notification under Education Law §1128(2).  The record reflects that petitioners had many opportunities to inquire about the status of the abuse allegations, including at the time of the CSE meeting on March 14, 2007 when their daughter’s placement was discussed in detail.  I therefore find that the appeal is untimely and petitioners have not offered a reasonable excuse for their delay. 

While the appeal must be dismissed as untimely, I nevertheless remind respondent board of its obligations under Article 23-B of the Education Law and §100.2(hh) of the Commissioner’s regulations regarding the reporting of child abuse in an educational setting.  Those provisions are not reflected in the district’s policy on child abuse that was submitted with respondents’ answer.  

In light of this disposition, I need not address the parties’ remaining contentions.